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S.S. v. Stephanie H.

Court of Appeals of Arizona, First Division

January 12, 2017

S.S., S.S., Appellants,
v.
STEPHANIE H., GARRETT S., COLORADO RIVER INDIAN TRIBES, Appellees.

         Appeal from the Superior Court in La Paz County No. S1500SV201200004 The Honorable Douglas Camacho, Judge Pro Tempore

         AFFIRMED.

          Rideout Law, PLLC, Lake Havasu City By Wendy Marcus Counsel for Appellants

          Jessica L. Quickle, Attorney at Law, Parker By Jessica L. Quickle Counsel for Appellee Mother

          Office of the Attorney General, Colorado River Indian Tribes, Parker By Elizabeth M. Lorina-Mills, LeeAnne Kane Counsel for Appellees Colorado River Indian Tribes

          Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in which Judge Jon W. Thompson and Judge John C. Gemmill joined.[1]

          OPINION

          JOHNSEN, Judge.

         ¶1 This appeal requires us to consider application of the Indian Child Welfare Act of 1978 ("ICWA") to a private severance proceeding brought by an Indian parent against a non-Indian parent on grounds of abandonment. For the reasons that follow, we affirm the superior court's denial of the requested severance.

         FACTS AND PROCEDURAL HISTORY

         ¶2 Stephanie H. ("Mother") and Garrett S. ("Father") have two children, born in 2000 and 2002, respectively. Upon Mother and Father's divorce in 2005, the court awarded Mother "sole primary care, custody, and control" of the children and granted Father visitation.

         ¶3 In February 2009, Mother and the children abruptly moved from Northern Arizona to a town south of Phoenix without the court's permission and without notice to Father. On Father's ex parte petition for relief, the court found the children were at risk of harm and awarded Father "temporary sole legal and physical custody." At the return hearing, Mother lied about the children's whereabouts. After the children were returned to Father a few days later, the court found Mother guilty of perjury and imposed a term of probation that required her to submit to drug testing and substance-abuse counseling.

         ¶4 A few months later, the court awarded Father "continued sole legal and physical custody" of the children, contingent upon his submission to hair follicle drug testing. The court granted Mother supervised visitation, also contingent upon hair follicle drug testing. Father complied with the drug test requirement within a few weeks, but Mother did not. At a review hearing in August 2009, the court reaffirmed that Mother could have "no visitation and no contact by any means (phone, texting, and visiting schools) with the children until the drug testing [was] completed." After that order, Mother took and passed three hair follicle drug tests, one in 2010 and two in 2014. Between June 2011 and October 2013, as a requirement of her probation, Mother submitted to 72 random urinalyses, 69 of which were negative. In August 2011, she successfully completed a 12-step drug and alcohol recovery program.

         ¶5 Father filed a petition to sever Mother's parental rights in December 2012, alleging abandonment and neglect pursuant to Arizona Revised Statutes ("A.R.S.") section 8-533(B)(1), (2) (2017).[2] Various pretrial proceedings and several reassignments of judicial officers caused trial to be delayed until January 2016. In the meantime, Mother made multiple child-support payments between August 2012 and March 2014 and completed a parenting class. Mother also filed for visitation in 2013 and 2014. Father opposed Mother's petitions for visitation, which the court denied. By the time of trial, Mother had not seen the children since May 2009.

         ¶6 The Colorado River Indian Tribes intervened in the severance case and fully participated at trial. All parties acknowledged that the two children were Indian children under ICWA, 25 U.S.C. § 1903(4) (2012). Accordingly, before the court could sever Mother's parental rights, Father would need to prove that (1) active efforts were made to prevent the breakup of the Indian family, (2) those efforts were unsuccessful and (3) continued custody by Mother was likely to result in serious emotional or physical damage to the children. See 25 U.S.C. § 1912(d), (f) (2012).

         ¶7 At the close of Father's case, Mother moved to dismiss pursuant to Arizona Rule of Procedure for the Juvenile Court 66(F)(3). The court ruled Father had offered sufficient evidence to go forward on abandonment but not neglect. The court found sufficient evidence to show severance would be in the best interests of the children, see A.R.S. § 8-533(B), and, addressing one of the required ICWA elements, "at least some" evidence that continued custody by Mother was likely to result in serious emotional or physical damage to the children, see 25 U.S.C. § 1912(f). The court, however, granted Mother's motion to dismiss because it found Father had not offered sufficient evidence to prove unsuccessful "active efforts" to prevent breakup of the family. See 25 U.S.C. § 1912(d).

         ¶8 The children timely appealed the dismissal of the petition for severance.[3] We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and pursuant to A.R.S. ยงยง 8-235(A) (2017), 12-1201(A)(1) ...


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